Eva Jellison v. Springfield, City of (SPR 20222600)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 30, 2022 SPR22/2600 Stephen G. Roche, Esq. Second Associate City Solicitor City of Springfield Law Department 36 Court Street, Room 210 Springfield, MA 01103 Dear Attorney Roche: I have received the petition of Eva Jellison, Esq., of Wood & Nathanson LLP, appealing the response of the Springfield Police Department (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 11, 2022, Attorney Jellison requested documents, including police notes, relating to specific murders and specific court cases. Prior Appeals The requested records were the subject of prior appeals. See SPR22/1835 Determination of the Supervisor of Records (August 22, 2022) and SPR22/2070 (September 23, 2022). In my September 23rd determination, I found that the Department intended on providing a further response and closed the appeal. On October 7, 2022, the Department provided a response. Unsatisfied with the Department’s response, Attorney Jellison petitioned this office and this appeal, SPR22/2600, was opened as a result. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10A(d); 950 C.M.R. 32.03(4). “Public records” is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any town of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre • pre@sec.state.ma.us

Stephen G. Roche, Esq. SPR22/2600 Page 2 November 30, 2022 Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Department’s October 7th response In its October 7, 2022 response, the Department states, “. . . responsive records consist of police reports, photographs and recordings, witness statements and other records that are contained in a case file associated with a death investigation.” The Department explains that “[t]he public records law applies to records that are in the ‘possession, custody or control’ of a governmental entity. See G. L. c. 66, § 10 (a) (ii), (iii); (c). The [Department] has physical ‘custody’ of a copy of the requested death investigation records. The Suffolk County District Attorney (‘SCDAO’) has both ‘custody’ and ‘control’ of the requested death investigation records.” Public records in the possession, custody or control of a records custodian In its response, the Department states that “. . . the Springfield Police Department does not control access to homicide records. The Hampden County District Attorney controls access to any information about a case involving a death. Massachusetts General Laws Chapter 38, Section 4 provides that the District Attorney ‘shall direct and control the investigation’ of any death.” The Department is advised that the duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request (emphasis added). See G. L. c. 66, § 10(a)(ii), (b)(ii). I find it unclear if the Department possesses certain responsive records. To the extent that the requested records exist, I find the Department must provide them in a manner consistent with the Public Records Law or identify an exemption that applies to withhold the records from disclosure. G. L. c. 66, § 10(b). Conclusion Accordingly, the Department is ordered to provide Attorney Jellison with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us.

Stephen G. Roche, Esq. SPR22/2600 Page 3 November 30, 2022 Sincerely, Manza Arthur Supervisor of Records cc: Eva Jellison, Esq.